Mathabo Motlomelo v National University of Lesotho (LC 55 of 7) [2009] LSLC 36 (10 August 2009)

IN THE LABOUR COURT OF LESOTHO LC 55/07 HELD AT MASERU In the matter between: ‘MATHABO MOTLOMELO APPLICANT and NATIONAL UNIVERSITY OF LESOTHO RESPONDENT JUDGMENT Date: 10/08/09 Unfair dismissal claim - Preceded by a condonation application for its late filing - The Court considers a number of factors including whether the time lapse can be said to have been reasonable together with the explanation for the said delay - Whether in the circumstances of this case the time lapse can be said to have been reasonable and the reasoning behind it plausible - The Court finds the reasoning behind the delay unsatisfactory and therefore finds itself not inclined to condone the delay. BACKGROUND TO THE DISPUTE 1. The applicant was engaged by the National University of Lesotho on 19th June, 2002 as a Lecturer in the Department of Home Economics within the Faculty of Agriculture on permanent and pensionable terms. This dispute arose out of a merger between the Faculty of Agriculture of the National University of Lesotho and the Lesotho Agricultural College, a merger which was unfortunately very short lived as in 2004 following a Cabinet Directive dated 13th August, 2003 the two entities de-merged. Following this de-merger applicant’s services were terminated through a letter dated 30th March, 2004 serving the applicant with a six months notice commencing on 1st April, 2004. 2. The applicant is challenging this dismissal on the basis that she had been engaged directly by the University on permanent and pensionable terms, and therefore ought not to have been treated like employees who had been engaged by the Lesotho Agricultural College prior to the merger. She contended that the termination was unlawful as it was based on a misconception that she formed part of the members of staff of the erstwhile Lesotho Agricultural College when she had only been absorbed upon the merger of the two institutions. According to her, she could not be retrenched. She therefore prayed for the following relief:- a) … b) Reinstatement as a Lecturer; c) Payment of salary arrears from the date of retrenchment to the date of reinstatement less what she was able to earn by way of mitigation of loss in the interim period; d) Alternatively, to payment of damages in the sum of M3, 618 454.56 being damages arising from the termination of employment, made up of lost income and pension. 3. It is common cause that the applicant was served with a letter of termination on 30th March, 2004, and the present application was filed on 17th September, 2007. Hence, applicant’s counsel prayed inter alia for condonation for the late filing of this application in light of the time that has lapsed between the date of termination of applicant’s services with the respondent and the institution of this application. 4. Applicant’s counsel contended that the delay was due to factors beyond applicant’s control. In support of his submission, he indicated that following the dismissal, the applicant along with other thirteen employees lodged LC 84/05 on 2nd November, 2005 with this Court challenging the said dismissal. In this case the then respondent’s Counsel had raised an exception to the effect that the application infringed on the provisions of Rule 3 of the Labour Court Rules, 1994 in that it did not disclose a cause of action. The Court upheld this exception. Applicant’s Counsel submitted further that subsequent to this application being declared non- compliant with the Rules, LC 103/06 was instituted on 21st November, 2006. However, applicant’s Counsel pointed out that the applicant discovered, to her dismay, that her name had been omitted as a party to the said application. According to him, the applicant had been let down by her then counsel. He pleaded with the Court to lean towards granting the condonation, it being a Court of equity and submitted that there are ample chances that the applicant stands to succeed on the merits because she was not dismissed for operational reasons in the first place. The applicant would therefore suffer prejudice if the condonation was not granted. 5. Respondent’s counsel vehemently opposed this application for condonation on the basis that the delay was inordinate and that the explanation advanced for it was not sufficient. He contended further that there are no prospects of success and the respondent stands to be highly prejudiced particularly due to the huge amount claimed if the condonation was to be granted. THE COURTS’ PERSPECTIVE 6. In considering whether to grant condonation, the following factors are prime:  The degree of lateness;  Explanation therefor;  Prospects of success;  Importance of the case; and  Prejudice to the opposing party. For these see Melane v Santam Insurance Company Ltd 1962(4) S. A 531 (A), and Jones & Buckle The Civil Practice of the Magistrates’ Courts in South Africa Vol. 1, 9th ed at p. 358. 7. Since these factors are not individually decisive but interrelated, the Court shall not deal with them seriatim. It is common cause that the applicant was served with a six months notice of termination commencing on 1st April, 2004 thereby effectively ending on 1st September, 2004. The Court notes that the applicant only lodged a complaint regarding her dismissal for the first time on 22nd April, 2005 per a letter addressed to the respondent which was exactly a year after having been notified on 30th March, 2004 of her dismissal. This is not consistent with someone who was aggrieved! We feel a natural reaction would have been to have approached the University authorities as soon as she got notified of her termination. Mr. Mohau on her behalf was at pains to point out that the applicant is a layperson. To us, expression of a grievance had nothing to do with having any legal know-how, we are dealing here with a person of the standing of a University Lecturer. Six months is by all standards quite a generous length of notice giving one sufficient time to probe a dismissal. 8. Coming to LC84/05. This application was instituted on 2nd November, 2005, and as aforementioned, the Court ruled that it did not disclose a cause of action. l had it involved an opportunity of perusing through LC84/05 and discovered that fourteen applicants inclusive of the applicant. Unfortunately, the ground on which relief was sought was just stated as “unlawful dismissal” such that one could not even say whether the cause of action was similar to the one raised in the present application. Be that as it may, Counsel submitted that subsequent to the aborting of LC 84/05, their then Counsel lodged LC103/06 in which as it turned out, the applicant was not a party to. According to him, the applicant was surprised to find herself omitted from the list of applicants. LC103/06 was lodged on 10th November, 2006. We have a problem with considering this application as the applicant was not a party to it. Secondly, even if we were to bend backwards and buy this version, this application was brought about a year after LC 84/05 had been lodged. A question comes to mind, what steps did the applicant take when she discovered that she had been erroneously left out? Nothing seems to have happened until the institution of the current application on 17th September, 2007. 9. We find the delay in instituting the present application rather inordinate and its explanation insufficient. The applicant appears to have played hot and cold. She would move, have a lull, and come up again. This is unacceptable. In United Plant Hire (Pty) v Hills 1976 (1) SA 717 (A) at p. 720 the Court pointed out that the length of the delay and the circumstances that prompted it are very important considerations. This application seems to have been plagued by delays throughout. To make matters worse, the applicant did not even testify nor file an affidavit to give her version of events leading to the delay, so that it could be tested. 10. Public policy dictates that there should be finality to litigation. This is expressed in the maxim interest republicae ut sit finis litum. This maxim was adopted in Marumo & Others v Dorby & Others (2005) ILJ, 4 and the Court underscored at p.500 A - B the principle that a litigant is obliged to pursue his claim within a reasonable period (vigilantibus non dormientibus jura subveniunt). This principle has been raised in a number of decisions including National Union of Metalworkers of S. A & Others v AS Transmissions & Steering (Pty) Ltd (2000) 21 ILJ, 327 and Cape Town Municipality v Abdullah 1974 (4) SA 428 at 348 in which the Court pointed out “that a man whose alleged legal interests are threatened should be vigilant in protecting them.” The applicant in the present application appears to have not been vigilant enough in pursuing her interests. 11. In terms of Article 8 (3) of the ILO Convention 158 on Termination of Employment; a worker may be deemed to have waived his right to appeal against the termination of his employment if he has not exercised that right within a reasonable period of time after termination. There are reasons behind these principles. In the employment context, it is critical that claims are lodged timeously because it is important for the employer to know as early as possible whether he could be required to reinstate an employee who has been terminated to enable himself/herself for that eventuality - See Metal & Allied Workers’ Union v Filpro (Pty) (1984) 5 ILJ, 171. Delays also cause untold anxiety on the part of the complainants. 12. A cursory glance at the merits, just for purposes of determining whether there are prospects of success, the Court sees no prospects of success in the matter. The gist of the applicant’s claim is that she was not wrongly included among employees who were dismissed for operational reasons. However, at a glance, the contrary seems to prevail. The letter which bore the news of the termination clearly reflected at paragraph 2 that the termination was a culmination of the de-merger between the two institutions. Hence, on the face of it, the termination of applicant’s services was based on operational grounds. It emerged that she became part of the merged entity, and logic dictates that whatever happened subsequently related to a then re-designed institution. The de-merger appeared to have not been in issue because the applicant even participated in it through an assignment by the respondent to a “Special Project of Re-establishing the Lesotho Agricultural College.” Annexure “NUL 4” to the respondent’s answer, captioned: National University of Lesotho Ministry of Agriculture & Food Security Joint Position Paper on the De-Merger of the School of Agriculture & Lesotho Agricultural College dated 13th March, 2003 stated at p. 2 paragraph 2.3 that GOL having settled the separation packages to be determined in accordance with clause 2.2 above, MAFS reserves the right to recruit afresh or issue new contracts re-defining the terms and conditions of service to be appropriately determined for those members who having been terminated from NUL on operational grounds, will be employable in the Lesotho Agricultural College under the auspices of MAFS. 13. Over and above this, the applicant in her own handwriting wrote to the respondent in a letter dated 24th January, 2005 (annexure “NUL 3” to the answer) giving directives as to which bank account her terminal benefits should be paid into. In her opening statement she even referred to the conversation she had with the SAR (Appointments) - “As per our conversation of 17th January, l would like to authorize the University to …” 14. In considering a condonation application, the relief sought is also critical. In the case of Metal & Allied Workers’ Union, supra, the Court held that “in applications for a status quo order… it should be noted that time is of essence and the degree of urgency is important into the procedures.” In casu, the applicant has sought a status quo ante relief as she is seeking reinstatement, and payment of salary arrears. Accordingly, time is of essence. If the claim takes too long it raises all sorts of complications, including the non- availability of positions. 15. As aforementioned, applicant’s counsel implored this Court to exercise its equity jurisdiction and not dispose of this matter on legal technicalities. Indeed, we are a Court of equity, but it depends on the circumstances of each case. At the end of the day we are a Court of law, and are enjoined to observe basic legal principles. In Lucy Lerata & Others v Scott Hospital 1995 LLR & LB, at p.6, the Court of Appeal referring to Section 27 (2) of the Labour Code Order, 1992 indicated that it does “not mean that the Labour Court can confer on, or deprive of rights any of the parties before it on mere gut feeling…It does not mean that the Labour Court is entitled to make its own rules in regard to who is to bear the onus in proceedings before it, nor to take cognisance of evidentiary material quite placed outside that placed before the parties.” This was a case in which Counsel for the applicants had argued that the Labour Court had failed to exercise its mandate of informality in handling the case which was the subject of the appeal. He had relied on Section 27(2) of the Labour Code which provides that: The Court shall not be bound by the rules of evidence in civil or criminal proceedings, and it shall be the chief function of the Court to do substantial justice between the parties before it. 16. The Court finds itself left with no option in the circumstances of this case but to dismiss the condonation application. The Court is not happy with the manner in which the applicant handled her dispute. She appears to have been rather reckless. It finds the period of the delay unreasonable and the explanation not satisfactory. In reaching this conclusion, the Court was further persuaded by the principle that litigation must come to finality. In NUM v Council for Mine Technology (1999) 3 BLLR, 209 at 211 the Court held that “a case with a long period of delay, coupled with an unacceptable explanation far outweighs whatever prospects of success the applicant may have.” In this case it is even worse because the Court sees no prospects of success. There is no order as to costs. THUS DONE AND DATED AT MASERU THIS 10TH DAY OF AUGUST, 2009. F. M. KHABO DEPUTY PRESIDENT L. MOFELEHETSI MEMBER R. MOTHEPU MEMBER I CONCUR I CONCUR FOR THE APPLICANT: FOR THE RESPONDENT: MR. MATHABA MR. MOHAU